Tag Archives: Supreme Court

Be Careful What You Wish For

The Supreme Court–newly dominated by a conservative majority–has accepted an abortion case out of Mississippi. It is widely expected that the Court will use that case to further erode a woman’s right to terminate a pregnancy–not explicitly overturning Roe v. Wade, but effectively eviscerating it.

Talking Points Memo considered the likely political effects of that decision, pointing out that, since the justices waited until the end of the current term to say that they would take it up, with a decision likely next June, it can hardly avoid being a front-burner issue in the 2022 election cycle.

Linda Greenhouse sees the decision to accept the case as the “end of the free ride” for anti-choice activists. She began that analysis by listing a number of situations in which state legislation curtailing abortion rights has been struck down by the courts, allowing “pro life” politicians to posture without incurring the electoral wrath of those who disagree.

Her recitation reminds me of a conversation I had with an Indiana legislator several years ago. He was in my graduate Law and Policy Class, and I knew he was aware of First Amendment precedents prohibiting state endorsement of religion, so when he voted to post the Ten Commandments on government buildings, I challenged him. His response was candid: he could vote the way the “folks in Mayberry” (his small town) wanted, keeping them happy, secure in the prospect that the courts would “bail him out.”

Abortion politics has taken a similar path.

Ever since the 2010 election ushered new Republican majorities into state legislatures, politicians there have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people’s representatives from having to own their actions.

Greenhouse explains how the Court can effectively demolish Roe without actually and explicitly overruling it, and then considers the politics involved. Her analysis is worth quoting at some length:

It’s a dim memory, but a salient one, that in Mississippi itself, a voter referendum that would have amended the state Constitution to grant personhood status to a fertilized egg was defeated in 2011 by a margin of 58 to 41 percent, despite endorsement by leading politicians and widespread predictions that it would pass. That’s when the anti-abortion forces decided that friendly legislatures were a better bet than the will of the people.

Last fall, in each of four nationwide polls, including one conducted for Fox News, more than 60 percent of registered or likely voters said they did not want the Supreme Court to overturn “Roe v. Wade.” I put the case in quotes because that’s how the pollsters asked the question; although Roe obviously carries strong symbolic meaning, the 1973 decision is in many respects no longer the law.

The question as the polls’ respondents processed it was most likely “Do you want to keep the right to abortion?” And no wonder the answer was yes: nearly one American woman in four will have an abortion. (Catholic women get about one-quarter of all abortions, roughly in proportion to the Catholic share of the American population.) Decades of effort to drive abortion to the margins of medical practice have failed to dislodge it from the mainstream of women’s lives.

For the cynical game they have played with those lives, politicians have not paid a price. Now perhaps they will. Of course, women themselves will pay a heavy price as this new reality sorts itself out, particularly women with low incomes who now make up the majority of abortion patients.

And there’s another price to be paid as justices in the new majority turn to the mission they were selected for. The currency isn’t votes, but something even more important and harder to win back: the institutional legitimacy of the Supreme Court of the United States.

There’s no free ride for the court either.

What Greenhouse doesn’t address is the extent to which the GOP has depended upon both the energy of anti-abortion activists and the relative lack of political activism by pro-choice voters who have assumed that the courts will protect their rights. If Roe is either over-ruled or–as is more likely–eviscerated, it may well shift that dynamic to the detriment of “the folks in Mayberry” and the GOP.

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The Shadow Docket

When Senator Tim Scott gave the GOP’s rebuttal to President Biden’s address to Congress, one of his complaints was that the President hadn’t re-opened the nation’s schools. He evidently assumed that America’s widespread lack of civic knowledge would obscure the inconvenient fact that Presidents have no authority over public schools.

It’s called federalism, Senator. Look it up.

Speaking of civic knowledge, I have frequently cited a poll from a couple of years ago that found–among other, multiple deficits of civic knowledge–that only 26% of Americans could name the three branches of government. Although the survey didn’t ask the question, I’m reasonably certain that even fewer understand why the Founders opted for separation of powers–or why they wanted to insulate the judicial branch from the wrath of the electorate.

Both the legislative and executive branches are elected, and thus accountable to voters. (We’ll leave for another day’s discussion the gerrymandering and voter suppression tactics that have substantially eroded that accountability. We’re talking theory now.) The federal judiciary wasn’t just unelected, it was appointed subject to Senate confirmation–and once appointed, judges serve for a lifetime. The theory–the hope–was that judges would rule on the basis of their understanding of the Constitution, and would not need to worry about losing their job if that understanding was contrary to the desires of the public.

Right or wrong–and sometimes they would be wrong– those rulings would be based upon the judge’s honest and informed evaluation of the merits of the argument.

Thanks to politicians like Mitch McConnell, that ideal of dispassionate and informed rulings meted out by  judges insulated from partisan pressure has been breached, perhaps irreparably. The arguments about “term limits” for Justices, for adding Justices to the Supreme Court, and for other changes to the federal judiciary are responses to the blatant politicization that has eroded public confidence in and respect for the judicial system. (I’m not a fan of sports analogies, but I’ll suggest one: if an umpire is believed to be “in the pocket” of Team A, fans of Team B aren’t going to respect his calls.)

The ultimate “fix” for the current situation is unclear, but while lawyers, legal scholars and political figures squabble, we have increasing evidence that the current Supreme Court is ignoring precedent in favor of partisan ideology. A recent New York Times op-ed by a law professor from the University of Texas shone a light on the Court’s use of its little-understood “Shadow Docket.”

Late last Friday, the Supreme Court, by a 5-4 vote, issued an emergency injunction blocking California’s Covid-based restrictions on in-home gatherings on the ground that, insofar as they interfere with religious practice, they violate the First Amendment’s free exercise clause.

Reasonable minds will disagree on this new standard for free exercise claims. But a far more glaring problem with the court’s decision is that it wasn’t an appropriate moment to reach it.

Like so many of the justices’ more controversial rulings in the last few years, this one came on the court’s “shadow docket,” and in a context in which the Supreme Court’s own rules supposedly limit relief to cases in which the law is “indisputably clear.”

Whatever else might be said about it, this case, Tandon v. Newsom, didn’t meet that standard. Instead, the justices upended their own First Amendment jurisprudence in the religion sphere, making new law in a way their precedents at least used to say they couldn’t.

The term “shadow docket” was coined to describe that part of the justices’ job that involves summary orders addressing management of the Court’s caseload, rather than decisions on the merits of cases.

But recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond those issues, especially orders changing the effect of lower-court rulings while they are appealed. Indeed, Friday night’s injunction was at least the 20th time since the court’s term began last October that the justices have issued a shadow docket ruling altering the status quo. And the more substantive work that the justices carry out through such (usually) unsigned and unexplained orders, the more the “shadow docket” raises concerns about the transparency of the court’s decision making, if not the underlying legitimacy of its decisions.

In fact, the author tells us that this ruling was the seventh time since October that the justices have issued an emergency injunction — and that all of them have blocked Covid restrictions in blue states on religious exercise grounds.

If all three of those branches that few Americans can name are “accountable” to partisan passions–if there is no demonstrably impartial arbiter of constitutional disputes–America’s slide toward civil chaos will continue to gather speed.

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Testing The Current Court

The worst “hangover” from four years of Trump is undoubtedly the composition of the country’s federal courts–including but not limited to the Supreme Court. Granted, Trump–who wouldn’t know a legal principle if he fell over one–wouldn’t have known how to stuff the courts with rightwing ideologues; Mitch McConnell is the villain. But Trump enabled him.

In a recent column for the New York Times, Linda Greenhouse explained the troubling implications–and predictive value– of an upcoming Supreme Court case.

The case that the Supreme Court heard this week about a California law granting union organizers access to private farms has been described as a labor case, which it marginally is. It has also been described as a case about property rights, which it definitely is. But what makes Cedar Point Nursery v. Hassid one of the most important cases of the current term is the question it presents for the newly configured court: whether, after years of disappointment, the political right may finally be able to take the Supreme Court for granted.

The case is being brought by the Pacific Legal Foundation, and as Greenhouse reports, Pacific group is using Cedar Point–a company that grows strawberries– and another employer that packs and ships citrus fruit and grapes, as “stalking horses for its long-running project to elevate property rights.”

The case involved union access to agricultural workers. The California law being challenged had been passed during Cesar Chavez’s drive to organize the state’s farmworkers. It limited the ability of the union to approach workers in the field to periods before and after the working day and to three hours on 120 days of a year.

Greenhouse focused in on an illuminating–and to lawyers, startling–exchange between the lawyer and Justice Kavanaugh. Kavanaugh referred to a 1956 case that balanced employers’ property rights agains union organizing rights, and noted that–under that test–Pacific would “prevail”–it would win its case. The lawyer for Pacific “rejected out of hand” that potential path to victory.

Pacific isn’t interested in just winning its case. It wants to change the law.

The Pacific Legal Foundation doesn’t want a balancing test. It wants a categorical rule — referred to throughout the argument as a “per se rule” — that any entry by a union onto private land, if authorized by the state, is a “taking” of private property in violation of the Fifth Amendment’s Takings Clause (“nor shall private property by taken for public use, without just compensation”). Any entry at all.

So let me ask you this,” Justice Amy Coney Barrett said to Mr. Thompson. “What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per se rule?”

Yes, the lawyer replied.

Barrett clerked for former Justice Scalia, who championed an expansion of the categories of government action that count as a “taking.”  The Fifth Amendment requires government to compensate property owners for takings, and there has long been an effort to turn regulations–especially environmental regulations–into compensable takings subject to that Amendment.

If you have a wetland on your property and regulations impede your ability to develop it, for example, the government would have to “compensate” you.

Until a 1992 case, Lucas v. South Carolina,  courts had defined takings as the physical occupation of private property, usually via eminent domain.

Government actions that didn’t “take” private property in the literal sense, but simply limited its use in certain ways, were regarded as “regulatory takings,” with the private and governmental interests being weighed against one another to determine whether compensation was required…

When a regulation “declares ‘off-limits’ all economically productive or beneficial uses of land,” Justice Scalia wrote for the court, “compensation must be paid to sustain it.”

Ever since, the Pacific Legal Foundation has argued for the adoption of what Scalia called a “categorical” taking.

That was the war that resumed at the Supreme Court this week, and that history explains why, from the Pacific Legal Foundation’s point of view, anything short of total victory is beside the point.

Greenhouse notes that whether the court buys Pacific’s theory will tell us a great deal about the success of McConnell’s effort to refashion the courts.

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The Crux Of The Problem

The Senate–which has managed to do pretty much nothing during the pandemic (granted, it wasn’t exactly productive in the months before that, either)–is rushing through the process of confirming Amy Coney Barrett to the Supreme Court.

There are many aspects to this unseemly exhibition, but one that has been less remarked upon is the connection between the Senate’s growing problem of disproportionate representation and that body’s importance to the seating of Supreme Court Justices.

A recent post by Nate Silver at FiveThirtyEight.com connected those dots.

Silver says that the constitution of the Senate poses an “enormous problem for Democrats”–not simply because the parties as currently constituted map onto urban and rural representation. (Democrats dominate in cities; Republicans triumph in rural areas.) As he points out,

 because the Senate is responsible for confirming Supreme Court picks, that means the Supreme Court is a huge problem for Democrats too. Sure, Democrats might win back the Senate this year — indeed, they were slight favorites to do so before the Ginsburg news. But in the long run, they’re likely to lose it more often than not.

You can probably grasp intuitively that a legislative body which provides as much representation to Wyoming (population: 580,000) as California (population: 39.5 million) will tend to favor rural areas. But it’s a bigger effect than you might realize, so let’s run some numbers. At FiveThirtyEight, our favorite way to distinguish between urban and rural areas is based on using census tracts to estimate how many people live within a 5-mile radius of you.

Using this metric, Silver broke the country down into four categories: those with fewer than 25,000 people within 5 miles were classified as rural; those falling between 25,000 and 100,000 were exurban; between 100,000 and 250,000 were suburban or small city; and over 250,000 were urban. Using this (somewhat arbitrary) classification system, Silver found that these “buckets” were almost even: 25 percent rural, 23 percent exurban/small town, 27 percent suburban/small city, and 25 percent urban core/large city.

He then looked at the Senate, and– surprise! (no surprise; I’m kidding)– found a major skew to rural areas in that chamber’s representation. It turns out that the Senate has” two or three times as much rural representation as urban core representation … even though there are actually about an equal number of voters in each bucket nationwide.”

And of course, this has all sorts of other downstream consequences. Since rural areas tend to be whiter, it means the Senate represents a whiter population, too. In the U.S. as a whole, 60 percent of the population is non-Hispanic white and 40 percent of the population is nonwhite. But in the average state, 68 percent of people are white and 32 percent are nonwhite. It’s almost as if the Senate has turned the clock back by 20 years as far as the racial demographics of the country goes. (In 2000, around 69 percent of the U.S. population consisted of non-Hispanic whites.)

The post goes through a lot of mathematical calculations, which you can see if you click through, but the bottom line is stark:

the Senate is effectively 6 to 7 percentage points redder than the country as a whole, which means that Democrats are likely to win it only in the event of a near-landslide in their favor nationally. That’s likely to make the Republican majority on the Supreme Court pretty durable.

There is a lot to unpack in this article, beginning with my extreme discomfort with its underlying premise that the Supreme Court is merely another arena for American political partisanship. Granted, judicial philosophy has always been a significant cause of dissension, but it is only in the last few years that the judiciary has effectively been reduced to the status of partisan prize–as a tool for imposing political hegemony through the legal system, rather than a safeguard of fidelity to the Constitution and the rule of law.

What the article does make very clear, however, is the disturbing and undeniable fact of minority rule. White rural Republicans–who are advantaged by the current situation–like to recite that America is a republic, not a democracy, as if that somehow rebuts the fact that a true republic is a representative democracy. (Look it up.)

This situation is at the crux of our national problems. America is currently ruled by an unrepresentative minority–and the effect of that reality includes but is certainly not limited to the GOP’s intentional corruption of the nation’s judiciary.

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What’s Next?

In a recent New York Times op-ed, Thomas Edsall asks a question that is rapidly becoming more pressing: what happens after the election?

It’s a question we really can’t answer until we know not just who has won the Presidency, but how the transition has been handled and–far more important–who will control the Senate.

Although “what now?” depends upon currently unknown election returns, we can–actually, we should–consider a variation of that question. What ought to happen next?

My own concerns revolve around the inevitable splintering of the Democratic Party into its factions. One of the problems with single-party dominance (or in this case, single-party sanity) is that reasonable people holding very different views all end up in the non-crazy party. Democrats have never been ideologically monolithic; these days, thoughtful conservatives, liberals and leftist activists are all Democrats because their only other options are to join a cult (the contemporary GOP) or vote for a third-party candidate (essentially flushing their votes).

My most fervent hope–assuming Democratic control of the Senate as well as the House and the White House–is that leadership will immediately move to implement policies on which there is broad consensus: rolling back the roll-backs of environmental protections; passing H.B. One–the broad reform of electoral rules that passed the House by a massive margin and languished (along with everything else Mitch McConnell touched) in the Senate; ending tax policies that soak the middle class while allowing the rich to evade paying their share; re-instating DACA and instituting humane immigration policies.

There are others, and they should all be introduced and passed as expeditiously as possible.

Noted political scientist Theda Skocpol believes the Democrats will hang together; she tells Edsall that, in the event of a Democratic Senate majority, especially with a cushion of 2 or 3 votes, she

does not foresee any acute internal conflicts, because there will be so much to do in a pandemic and economic crisis,” adding, “I think joint approaches will not be hard to work out: voting reforms, expansion of Obamacare with a strong public option, college costs help for lower income and lower middle class, robust green jobs investments, etc., etc.

I hope she’s right.

Other measures that ought to be taken–preferably, within the first hundred days–include eliminating the filibuster and expanding the number of federal judges. If–as is likely–Judge Barrett has been confirmed in a departing f**k you by McConnell, the number of Justices on the Supreme Court should also be expanded. (Actually, according to the Judicial Conference, that should be done even if, by  some intervening miracle, her nomination fails). But what should be done and what will occur are two different things, and opinions on both the filibuster and the approach to the courts divide the party’s moderates and progressives.

“What’s next” is, of course, a broader question than “what policies should Democrats pursue?” Edsall’s column is concerned less with policy and more with politics. He quotes a political scientist for the rather obvious observation that it’s easier to unite against something than for something, a truism that doesn’t bode well for continued Democratic unity. He also tackles the less obvious–and far more important–question “what happens to Trumpism” if, as seems likely, Trump loses?

Rogers Smith–another noted political scientist–thinks that a loss for Trump won’t defeat Trumpism.

Trump has built a new right populist coalition that has more electoral appeal than the full-tilt neoliberal, moderately multicultural economic and social positions of the prior Republican establishment. It has plenty of reasonably charismatic youthful champions. Its leaders will avoid the crude bullying and rule-flouting that Trump displayed in the recent presidential debate, and they’ll certainly try to avoid Access Hollywood-type scandals. But otherwise they will carry the Trump right-populist movement forward.

The “Trump movement” is essentially racist, theocratic and misogynistic. So long as it remains a viable, non-fringe element of American political life, the “American experiment” is at risk.

Whatever is “next,” we probably aren’t yet out of the woods.

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